113 IEA

 Statue

1. 113A IEA
2. 113B IEA

Important Points

1. 113A 
1. Suicide u/s 306, 107 IPC 
2. Discretion of court to presume that husband has abetted suicide of wife
1. if wife died <7y of date of marriage
2. she has been subjected to cruelty 
3. Presumption u/s 113A can be drawn, however burden of proof of showing such offence has been committed is on prosecution.

Case Law

1. Hans Raj Vs State of Haryana (2004) 12 SCC 257
1. 113A IEA and Section 306, 107, 498A IPC unlike 113B of IEA, a statutory presumption does not arise by operation of law merely on the proof of circumstances enumerated u/s 113A
2. Prosecution has to first establish
1. Woman concerned committed suicide within < 7y of marriage
2. Husband has subjected her to cruelty
3. Even if above 2 facts are established the court is NOT bound to presume the suicide has been abetted by her husband.
2. Pinakin Mahipatray Rawal Vs State of Gujarat ( 2013) 10 SCC 48
1. Though presumption u/s 113A can be drawn, the burden of proof of showing that such offence has been committed by accused u/s 498A is on the prosecution. 

Criminal Appeal

 

Statute

Important Points

1. SC - deprecated the practice of Hight Court in disposing of criminal appeals without recording reasons in support of its decision.

Case Laws

1. Reason shall be provided while disposing criminal appeals
1. State of Punjab Vs Jagdev Singh Talwandi (1984)) 1 SCC 596
2. State of Punjab Vs Surinder Kumar (1992) 1 SCC 489
3. Zahira Habibulla H.Sheikh Vs State of Gujarat (2004) 4 SCC 158

498A IPC

 

Statue

1. 498A IPC - Whoever being the husband or the relative of the husband of a woman, subjects such women to cruelty shall be punished with imprisonment for a term which may extend to 3y and shall also be liable to fine
2. Explanation - For the purpose of this section "CRUELTY" means
1. any wilful conduct which is of such a nature as is likely to drive the women to commit suicide or to cause grave injury or danger to life, limb or health ( whether mental or physical ) of the woman; or
2. harassment of the woman where such harassment is with a view to coercing her or any person relating to her to meet unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Important Points

1. Arguments in favor of accused
1. Long marriage
2. While living with her in-laws and husband was able to prepare herself for competitive examination and succeeded and is now working in Bihar Government as Deputy Collector, which could have only been done with the cooperation of the family. ( Cr Misc No 24423/ 2004  Dinesh Kumar Lal Vs State of Bihar - High Court of Patna
3. Exaggerated allegations, no previous allegations against her in laws 
4. Parents and relatives staying away , adding relatives and entire family to harassment 
2. Arguments against accused
3. Girl friend is not relative and cannot be accused in 498A case

Case Law

1. U.Suvetha Vs. State  (2009) 6 SCC 757, 
1. held that persons who can commit offence under Section 498-A IPC are husband and relatives only. Girlfriend, being not a relative, cannot be charged under Section 498-A IPC.

Caveat

 

Statute

1. Section 148A of Civil Procedure Code, 1908
1. Where an application is expected to be made, or has been made, in a suit or proceedings instituted, or about the instituted, in a court, any person claiming a right to appear before the court on the hearing of such application may lodge a caveat in respect thereof
2. where a caveat has been lodged under sub-section (1) the person by whom the caveat has been lodged, shall serve a notice of the caveat by the registered post, acknowledgement due, on the person by whom the application has been or is expected to be made under sub-section (1) - DIRECTIVE in nature
3. Where, after a caveat has been lodged under sub-section (1) any application is filed in any suit or proceeding, the court shall serve a notice of the application on the caveator.
4. Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator at the caveators expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.
5. Where a caveat has been lodged under sub-section(1) such caveat SHALL NOT REMAIN in force after the expiry of NINETY days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of said period.
2. 54th Law Commission report 

Important Points

1. Caveat - latin - let a person beware, understood as notice
2. Certain actions may not be taken WITHOUT informing the person who gave the notice.
3. Caveat is PRECAUTIONARY measure which is undertaken when having very strong apprehension that some case is going to be filed in the court regarding their interest in any manner.
4. Object of Caveat
1. Safeguard the interest of the Caveator, who is ready to face the suit which is expected to be instituted by his opponent
2. Affording an opportunity before an ex parte order is made
3. Avoid multiplicity of proceedings, so as to save the cost & convenience of court
5. Proceeding u/s A226 does not entertain a caveat petition, also applies to execution proceedings and proceedings under criminal Procedure code. 
6. The section should be scrupulously followed by court.

Case Laws

1. Nirmal Chand Vs Girindra Narayan AIR 1978 Calcutta 492
1. Caveat is not defined in Code
2. Court defined Caveat 
1. is a caution or warning given by a person to the Court 
2. NOT TO TAKE ANY action or grant relief to the other side 
3. without giving notice to the caveator and without affording opportunity of hearing him.
2. Kattil Vayalili parkkum koiloth Vs Mannil Paadikayil Kadeesa Umma 
1. A person who is total stranger to a proceeding cannot lodge a caveat.
3. Reserve Bank of India Employees association & Anr Vs The Reserve Bank of India 
1. The power of a Civil Court are too sacrosant  to be allowed to be diluted or to be curtailed by a mere remote impliation.
2. No specific provision declaring any action taken by court contrary to its mandatory duty under sub-section(3) to give notice would be void.
3. Mere lodgment of a caveat would not deprive the Court of its power to pass an order even if the caveat  or was not informed of the date of hearing of the matter.
4. As the lodgment of a caveat is merely a right to be informed of the hearing date and it has no effect by way of curtailing the power of the civil court to pass appropriate order on the merits of the case.
4. Kapiladeo Prasad Vs Ramanand Prasad AIR 2007 Pat 1
1. Section 9 of CPC further makes it abundantly clear that it applies to suits of civil nature
2. It is also clear from language of 148A of CPC, that it applies to application in a suit or proceedings instituted or about to be instituted in Civil court.
3. Courts shall have jurisdiction to try all suits of a civil in nature
4. in CrPC No such specific provision of filing a Caveat as governed u/s 148A of CPC exist
5. Nagawwa Vs Veeran Shivalingappa Konjali AIR 1976 SC 1947
1. It is not province of the Magistrate to enter into a detail discussion of the merits or demerits of the case nor can the HC go into matter in reversional jurisdiction.  which is very limited
2. Proceeding u/s 202 CrPC the accused has got ABSOLUTELY NO LOCUS STANDI and is not entitled to be heard on the question whether the process should be issued against his or not
3. Unless an order of cognizance is recorded against the accused no accused is entitled to address the court.

Sources

1. https://www.helplinelaw.com/govt-agencies-and-taxation/CAVEATPET/caveat-petition.html
2. http://www.legalservicesindia.com/article/2124/caveat-petition.html
3. https://acadpubl.eu/hub/2018-120-5/3/219.pdf
4. https://acadpubl.eu/hub/2018-120-5/3/209.pdf

Civil Procedure Code

 

Important Points

1. Origins
1. CPC evolved as matter of long years of experience emanating out of common law of England
2. Procedural law Vs Substantive law
1. The provisions of the code should NOT be allowed to defeat substantial justice [1]
2. Hypertechnical view should be avoid by court. [2]
3. A procedural law is always subservient to the substantive law.
4. Nothing can be GIVEN by a procedural law what is not sought to be given by a substantive law and nothing can be TAKEN away by a procedural law what is given by the substantive law.
3. Scope NOT exhaustive
1. Court has INHERENT power to act according to the principles of justice, equity and good conscience.
2. Nothing in Code SHALL be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ENDS of justice or to PREVENT abuse of the process of the Court.
4. Interpretation
1. Procedural laws are always retrospective in operation unless there are good reasons to the contrary ( Halsbury law of England V44 p 574 )
1. No one can have a vested right in forms of procedure.
5. Order 1 to 20 - 1st Schedule - deal with suits
1. Order 1 to 4 : institution and frame of suits, parties to suit and recognized agents & pleaders
2. Order 5 : issue and service of summons.
3. Order 6 : Pleading 
4. Order 7, 8 - written statements, set-off and counter claims
5. Order 9 - parties to suit appear before court and enumerates consequences of non-appearance. - Remedy for setting aside an order of dismisal  and exparte order
6. Order 10 - examine parties
7. Order 11 to 13 : discovery, inspection and production of documents and also admission of parties
8. Order 14 : Frame issues
9. Order 15 : Court pronounce Judgment at first hearing 
10. Order 16 to 18 : Summoning, attendance, examination of witness and adjournments
11. Order 19 : empowers the court to make an order to prove fact on basis of affidavit of a party 
12. Order 39 : Temporary injunction
13. Order 20 :  Judgment and Decrees
14. Order 25 : Security of costs
15. Order 22 : effect of death, marriage  or insolvency of a party to suit
16. Order 23 : withdrawal and compromise of suits.
17. 
    
6. Sections
1. Section 9 - Civil court has jurisdiction to try all suits of a civil nature unless they are barred expressly or impliedly.
2. Section 10 - Provide STAY of suit  ( res sub judice )
3. Section 11 - RES JUDICATA
4. Section 13, 14 - Foreign Judgements
5. Section 15 to 21A - Regulate the place of suing. - Jurisdiction
6. Section 22 to 25 - make provisions from transfer & withdrawal of suit, appeals
7. Section 33 : Judgment and Decrees
8. Section 75 to 78 ( Part III ) & Order 26 - Make provisions of advocate commissions
9. Section 89 : Settlement of disputes out of court through arbitration , conciliation, mediation  and Lok adalat
10. Section 94 to 95 & Order 26 make - issue arrest of a defendant and attachment before judgment
11. Part II : Section 36 to 74 : Execution proceedings 
12. Section 148A - CPC - permit a person to lodge a caveat in a suit or proceeding instituted or about to be instituted against him.
1. It is the duty of the court to issue notice and affort an opportunity of hearing to a caveator to appear and oppose interim relief sought by applicant.

Important Case

1. Hukum Chand Boid Vs Kamalanand Singh ILR (1906) 33 Cal 927
1. The provisions of the code should NOT be allowed to defeat substantial justice
2. Court has INHERENT power to act according to the principles of justice, equity and good conscience.
2. Babu Lal Vs Hazari Lal (1982) 1 SCC 525
1. Hypertechnical view should be avoid by court
3. Saiyad Mohd Bakar Vs Abdulhabib Hasan ( 1998) 4 SCC 343
1. A procedural law is always subservient to the substantive law.
2. Nothing can be GIVEN by a procedural law what is not sought to be given by a substantive law and 
3. nothing can be TAKEN away by a procedural law what is given by the substantive law.
4. State of Punjab Vs Shamlal Murari (1976) 1 SCC 719
1. Procedural law is not to be tyrant but a servant, not an obstruction but an aid to justice.
2. Procedural law is handmaid and not the mistress, a lubricant not a resistant in administration of justice. 
3. Courts are to do justice, not to wreck this end product of technicalities

Solitary Confinment

 

Important points

1. Confinement of an inmate in a cell for 22hrs a day amounts to quasi solitary confinement
1. and such is violative of his Fundamental Right to life guaranteed under A21 
2. Quasi solitary confinement because inmate is deprived of human company for extended lengths of time and such confinement has been held to be extremely harsh and violative of basic human rights which are entitlement of every prisoner.
2. Balance need to be maintained between security enforcement and protection of fundamental rights of prisoners.
3. 
   
4. Private Maintenance 
1. provision of food, clothing, bedding and other necessaries through private sources, cooking facilities, adequate food and water, adequate clothing and newspaper, magazines and television
5. Arguments for solitary confinement
1. Hardened criminal with 34 cases registered against him, convicted in few.
2. Propensity to create riotous situation.
6. Arguments against solitary confinement
1. Stringent measures cannot be justified even on the grounds of maintenance of discipline and order as personal liberty of a prisoner cannot be curtailed to such an extent that he is reduced to a mere animal existence.

Case Law

1. Sunil Batra (II) Vs Delhi Administrationv1978 4 SCC 494
1. Even a person under death sentence has human rights which are non-negotiable and even dangerous prisoner, standing trail, has basic liberties which cannot be battered away.
2. Sunil Batra (II) Vs Delhi Administrationv1980 3 SCC 488
1. It is evident that the letter of law laid down in the path breaking judgement o

Plea of Alibi

 

Statue

1. S103 of Indian Evidence Act - Burden of Proof as to any particular fact lies on that person who wishes court to believe in its existence, UNLESS it is proved by any law that the proof of that fact lies on any particular person
2. Illustration - 
1. A prosecutes B for theft, and wishes the court to believe that B admitted the theft to C. A must prove the admission.
1. "B wishes the Court to believe that at the time in question, he was elsewhere. He must prove it"
3. 
   

Important Points

1. Burden to prove the pleas of alibi lay upon the accused which he could do by leading evidence in the trail and not by filing some affidavits or statements recorded in 161 CrPC.
2. Prosecution would have opportunity to cross examine those(alibi) witness and demonstrate that their testimony was not correct.

Case Laws

1. Gurcharan Singh Vs State of Punjab AIR 1956 SC 460
2. Chandriak Prasad Singh Vs State of Bihar AIR 1972 SC 109
3. State of Haryana Vs Sher Singh AIR 1981 SC 1021